In recent years, public alarm over large chronic budget deficits has forced Congress and the president to try a variety of methods to bring spending under control. One is the line-item veto, a version of which became law last year.
It was a worthwhile piece of legislation--promising our elected officials the chance to experiment with a promising idea without committing the nation to it permanently through a constitutional amendment.
On Thursday, however, a federal district court aborted the test run by ruling that the measure violates the constitutional separation of powers by ceding legislative authority to the president. But its reasoning was less than persuasive. There are plausible grounds to think the Supreme Court will uphold the law as consistent with both the text of the Constitution and its own precedents.
The Line Item Veto Act allows the president to remove selected spending items when he signs an appropriation measure. They are returned to Congress, which has the power to restore them by a simple majority vote. Should the president disagree, he can exercise his usual veto, which requires a two-thirds vote to override.
Judge Thomas Penfield Jackson of the U.S. District Court for the District of Columbia says the law violates the constitutional clause that says any bill approved by Congress must be, in his words, "presented to the President in toto, in which form he acts upon it, either to make it (or allow it to become) a law, or to return it to Congress for reconsideration."
In fact, that clause is remarkable for its vagueness, since it doesn't define a bill and doesn't use the word "veto." Judging strictly from the text, if Congress wants to let the president treat individual parts of a measure as "bills," the Constitution doesn't stand in the way.
The Constitution, after all, doesn't specify that the president has the power to refuse to spend money appropriated by Congress, though the Supreme Court has assumed that he does. If that prerogative doesn't infringe on the separation of powers, it's hard to see how this version of the line-item veto does. The impoundment power amounts to an item veto without any congressional check. Under this law, by contrast, Congress can easily reverse the president.
The line-item veto could turn out to be helpful--or useless--in stemming Washington's red ink. There is no compelling reason for the courts to kill the experiment before it has begun.